Lowering The Bar For Genercide From "Clear Evidence" To "Reasonable Basis"

When a trademark becomes ubiquitous with a product or service, it becomes generic and is therefore not capable of protection as the mark cannot function as a trademark. The process of a mark becoming generic and the former owner's rights being terminated is called 'genericide.' For example, consider ZIPPER, XEROX, ESCALATOR, and TRAMPOLINE – all formerly protected trademarks that have since been deemed generic.

For decades, the USPTO required "clear evidence" that a trademark was generic before refusing to register the applied-for mark. However, the policy gradually changed to 'applicable' in federal courts, influencing the evidentiary standard to establish genericide even though "there is no statutory basis for applying a heightened standard" (see USPTO, Examination Guide 1-22: Clarification of Examination Evidentiary Standard for Marks Refused as Generic (May 2022)). In various case examples, the clear evidence policy became conflated with "clear and convincing